P L D 1961 Dacca 679 (PLP)

HAMOODUR RAHMAN, J.‑This appeal is directed against an order dismissing a suit for partition passed by the learned Subordinate Judge, 3rd Court, Mymensingh, on the 20th January 1954.

2. The plaintiff who is the appellant before us instituted a suit for partition of certain immovable properties described in Schedule I to the plaint, as also certain huts and movables described in Schedule III to the plaint. His case appears to have been that the Schedule I properties together with some other properties as set out in Schedule II to the plaint, belonged originally to two brothers Forman Khan and Kent Khan. On partition the Schedule I propertios forming 8 annas 5 gandas share of the Schedule II properties, came to be possessed separately and enjoyed by Forman Khan. The said Forman died leaving one son Nasu Khan and one daughter Kamla Bibi who inherited the properties in 2/3rd and 1 /3rd share respectively. Thereafter Nasu Khan died leaving the plaintiff, three other sons and three daughters. The plaintiff then some time in 1326 B., S. separated from his brothers and went to live in a new house which he had built for himself in mouza Karampara. But at that time only certain lands comprised in khatian No. 22 of mouza Karampara which were the self‑acquired properties of the plaintiff and his three brothers, were divided. The brothers in spite of his request did not agree to partition the other ancestral properties.

3. The plaintiff's further case was that although he had gone to live away in the separate homestead of his own, the huts and movable properties described in Schedule III located in the old joint family homestead, were also not divided .but later after then separation of the plaintiff, the other three brothers had untilised the materials of this but and constructed there with various huts on the same homestead. The plaintiff accordingly claimed 1/4th share in these huts as well.

4. The plaintiff also claimed 81 acres of land besides his inherited share, as he claimed to have purchased the same by a kabala from the heirs of Kamla Bibi in 1948. The plaintiff thus joined in the suit the heirs of Kamla Bibi, his other three brothers and his three sisters as defendants and claimed in his saham a share amounting to 2 annas 4 gandas 2 kranies in Schedule I properties plus 81 acres under his aforesaid purchase and 4 annas share in the huts and movables set out in Schedule II properties.

5. The suit was contested by defendants Nos. 2 to 5 and 7 to

9. Their main contention was that the suit for partition was not maintainable, firstly because in the year 1326 B. S., when the, plaintiff had separated from his other brothers, a separation of lands and movables including the hut, had also taken place, and, therefore, the plaintiff had no cause far partition now. Secondly, they maintained that the suit was not maintainable as all the joint family properties had not been brought into hotch pot. Their contention appears to have been that if, as alleged by the plaintiff, there was no partition of the ancestral properties inherited from Forman Khan, then the lands of Khatian No. 22 of mouza Kamarpara should also be brought into hotchpot for partition according to the respective shares of the parties. Lastly, they contended that the suit was not maintainable as upon the plait itself all the defendants were not shown to have any community of interest in all the properties of which partition was sought. Thus, since the plaintiff claimed a 4 annas share in the huts and movables alleging that these belong to him and only his three brothers, on his own case, he was excluding the heirs of Kamla Bibi from any share in the said properties, and, therefore, the entire suit was not maintainable. Apart from this, the defendants also denied the share claimed by the plaintiff, for according to them; Forman Khan left behind another son called Karim Khan and his two sons, namely, Rahim Khan and Lal Khan were necessary parties to the suit and since they had not been joined as such parties, the suit could not proceed in their absence.

6. On these pleadings, six issues were raised in the trail Court as follows "(1) Is the suit bad for non‑joinder of necessary parties ? (2) Was there any previous partition as alleged ? If so, is the present suit legally maintainable ? (3) Are the geneology and the extents of interests of the plaintiffs as given in the plaint correct ? (4) Are the huts and movables described in Schedule III of the plaint Ejmali properties ? (5) Is the suit bad for not bringing into hotchpot all Ejmali properties and for want of community of interest of the parties in all the properties in suit ? (6) To what relief, if any, are the parties entitled ?" Each side adduced both oral as well as documentary evidence in support of its respective case. The plaintiff examined himself and six other witnesses. The defendants also examined seven witnesses.

7. The main evidence on the side of the plaintiff was his own. He, in detail, described how he claimed title to the proper ties of Forman Khan. With regard to the existence of Karim Khan, the plaintiff admitted that Forman Khan had also another son called Karim Khan but, according to him, Karim Khan pre deceased his father Forman Khan and his sons, therefore, inherited no share in the properties of Forman Khan. He admitted that he and his three brothers separated, probably in the year 1326 B. S., and after separation he went to live at Kamarpara. He denied, however, that he constructed his homestead on the land of Khatian No. 22 of the said mouza. Nevertheless, he admitted that he had possession of a portion of the said lands but claimed that the lands of Khatian No. 22 were acquired by him and his three brothers and heirs of Kamla Bibi or any other heir of Nasu Khan had no title to those lands. It appears, however, that he had no document in his possession except certain rent receipts to show that the lands of Khatian No. 22 were the self‑acquired properties of the four brothers. These rent receipts were not, however, filed at the trial. He denied further that he took any portion of the materials of the ancestral huts when he went away to Kamarpara. According to him, his other brothers had utilised the materials of the said huts for constructing the new huts of their own. It appears from his evidence that originally there were only two big tin huts of 35 cubits in length and another only 19 cubits in length, a kitchen of 14 cubits in length, and a Dheki Ghar about 10 cubits in length besides an out‑house and a Chhapra of 5 bunds of tins. According to his own admission also, it appears that his three brothers were fairly well‑to‑do persons, as they were employed as Tahsildars under Santosh and Dilduar Zemindars. In addition thereto, two of his brothers did timber business by taking Ijara of forests as well as had a money lending business.

8. The other witnesses examined on behalf of the plaintiff were merely witnesses from whom corroboration was sought as to the fact that the huts at present existing on the ancestral homestead were erected out of the old hats and that the plaintiff did not take any but or movable from his paternal homestead to his new homestead at Kamarpara. The position however, that exists now is that there are two huts in the possession of one of the brothers and six huts in the possession of each of the other two brothers. Besides that there are two tin fencing in the portion of Chand Khan and Sultan Khan. The plaintiff's other witnesses could not say how all the huts could be built up out of the old materials although some of the witnesses admitted that the new huts were built some 10 or 12 years ago and had been in existence since then.

9. So far as the witnesses examined on behalf of the defend are concerned, D. W. 1, who is the husband of defendant No. 3 claimed to support the defence case and sought to give evidence to the effect that even the lands of Khatian No. 22 of Kamarpara were the properties of Nasu Khan, the father of the plaintiff and said that this would appear from certain Pattani Chitthas which were in their possession. Again, Pattani Chitthas were not filed in the trial Court. He also maintained that in 1326 B. S., even according to the plaintiff the lands of Kamarpara were partitioned and he separated from his other brothers and all the lands and movables including the very huts were also partitioned and the plaintiff took away the materials of the huts that fall to his share for the construction of his new homestead. He, however, admitted that certain materials of the huts which had fallen to the share of the three other brothers were utilised for the contraction of the new huts. But the plaintiff had no share in those materials. The other defence witnesses also purported to support him with regard to the partition between the brothers in 1326 B. S. D. W. 5 alone corroborated him with regard to the Jote of Khatian No. 22 of Kamarpara. He, too maintained that the Jote belonged to Nasu Khan.

10. So far as the documents are concerned the plaintiff filed the Khatian No. 21 (Exh. 2) relating too the lands of Schedule

1. The defendants also filed the Khatian No. 22 of mouza Kamarpara (Exh. C

1. Another Khatian No. 35 has also been filed to show the interest of the sons of Karim Khan. Besides these, the plaintiff has filed the kabala obtained from the heirs of Kamla Bibi in respect of 81 acres of mouza Kamarpara (Exh. 1) and Exh. A, a registered deed of Heba which he executed in favour of Kamaltannessa Khatun in respect of 1.32 decimals of land of mouza Ganjana, the ancestral properties.

11. On a consideration of this evidence, the learned Judge has come to the conclusion that Karim Khan, as alleged by the plaintiff, pre‑deceased his father Forman Khan, and, therefore, his said son was not entitled to any share in the said proper ties. In coming to this conclusion he has found support also from the Khatian Exh.

2. Since in this Khatian his four brothers have been shown to possess the entire 8 anhas 5 gandas of Forman Khan, he has drawn the inference that Rahim Khan and Lal Khan, the sons of Karim Khan, did not get any share in the properties of Forman Khan. But as stated by the plaintiff, they were given by way of gift 2 annas 15 gandas share in the Jote by Kern Khan, the other brother of Forman Khan who had no issues of his own. He has also found support from the written statements of the defendants in which there was an admission that Karim Khan had separated his share in the property of Forman Khan. It further appears that although interrogatories were delivered in this case by the plaintiff, the defendants did not, in answer to the interrogatories, set up any case to the effect that the heirs of Karim Khan were necessary. parties to the suit. Hence, according to the trail Court the plaintiff's title to the properties of Schedule I had been proved and it held him entitled to share of 2 annas 4 gandas 2 krantis as claimed by him in the said properties measuring some 1.56 acres. He was also given '8l acres claimed under the kabala Exh. 1 and out of these lands, an area of 1.32 acres covered by the Heba‑bil‑ewaz was excluded. Thus he was held to be entitled altogether to 1.05 acres of land in the jute.

12. Next, with regard to the alleged partition of 1326 B. S. the trial Court has taken the view that even if it is accepted that there was such a partition, that partition was not a legal partition, for upon the evidence on record that partition was said to have been effected between the four brothers alone leaving out the daughters of Nasu Khan and the heirs of Kamla Bibi. Hence it was not a vaild or legal partition at all and could not, therefore, be set up as a defence to the claim for partition now made by the plaintiff.

13. With regard to the land of Khatian 22 of mouza Kamar para, the trial Court has also come to .the conclusion on the basis of the khatians themselves that the contention of the plaintiff is correct that the lands of the said khatians were the self‑acquired properties of the four brothers. It would appear from Khatian No. 21 (Exh. ) that the ancestral jote is described as "Kayemi Mourashi Nasu Khan Ahmed Ali Khan". The latter Ahmed Ali Khan was an adopted son of Keru Khan, and under this heading possession has been shown of 8 annas 5 gandas, which was the share in the jote possessed by Forman Khan, with the four sons of Nasu Khan and of the rest with others including Rahim. Khan and Lal Khan ; whereas in the Khatian No. 22 (Exh. C.) the jote had been shown as possessed by Namdar Khan the plaintiff, Chand Khan, Basan Khan and Sultan Khan, the other three sons of Nasu Khan in 4 annas share each. Thus these Khatians, we are in agreement with the trial Court, do indicate that the lands of Khatian 22 were the self- acquired properties of the four brothers, and, therefore, the admitted partition thereof in 1326 B. S., cannot now be re‑opened and the defendants claim to have those properties brought into hotchpot is not of any substance.

14. With regard to the properties of Schedule 3, however the trial Court has come to the finding that as the plaintiff, separated from his brothers in 1326 B. S., over 30 years ago and went to live in another village, it is difficult to believe that he left the movable properties unpartitioned with his other brothers and again since he has stood by for the last 10 or 12 years even after his brothers had demolished existing huts and constructed, a much larger number of huts incorporating, the materials of the old huts, he could not now be allowed to claim any share in these huts. It was impossible also, after this long period of 30 years to identify any of the items of furniture of the other movables as being the specific movables left by Nasu Khan, particularly, as on the admission of the plaintiff himself, his brothers were sufficiently well‑to‑do and had acquired many properties of their own. We see no reason to differ with this finding. The trial Court has in our view, rightly come to the conclusion that the claim of the plaintiff to a share in the huts and movables cannot be maintained. But we find ourselves unable to agree with the finding of the trial Court that on this account since some of the other defendants, particularly, the heirs of the three sisters and the heirs of Kamla Bibi have not been shown to have any share in these movable properties, the entire suit for partition must fail.

15. The learned Judge has, in support of this latter point of view, relied upon a decision of the Calcutta High Court in the case of Sris Chandra Datta Choudhuri and others v. Mahim Chandra Datta Choudhuri and another (23CLJ231). All that was decided in the said case was that a partition suit can include no property wherein each of the parties to the suit does not claim an interest. But this does not go to the extent of saying that if in some of the properties to the suit all the parties to the suit have a community of interest and in some of the properties they do not have such community of interest partition of even the pro perties in which they have such community of interest, cannot be granted. It is interesting to note that in the case of Khanantamays Debya v. Srimati Rukmini Deby (48CWN759), the Calcutta High Court in a suit for partition even allowed a subsidiary partition where only the defendants were shown to have a community of interest in some of the properties and the plaintiff was found not to have any interest in those properties. The Court observed in those circumstances that it did not see any reason to drive the parties to a separate suit for partition of the properties of the second class by metes and bounds when that can be done in this suit itself without greater expense or trouble and went onto observe that it is on the principle of shorten ing litigation by the avoidance of multiplicity of suits that such a partition by metes and bounds even amongst the defendants of those properties should be directed, although the plaintiff in the said suit had no share in those properties.

16. It would, in our opinion, be undue hardship in such circumstances to hold that even though a plaintiff has succeeded in proving his claim to a certain portion of the properties mentioned in' the plaint and in that portion all the parties in the suit have community of interest, yet he must be pushed to a separate suit for partition in respect of those properties and his suit as filed must fail altogether. We are unable to accept this principle.

17. For the reasons given above, it is clear that this appeal must succeed in part. The judgment and order dismissing the entire suit are set aside and a decree is passed in the preliminary from declaring the share of the plaintiff to the extent of 2 annas 4 gandas 2 krantis in the lands of Schedule 1 to the plaint, as also declaring him to be entitled to '81 acres acquired by him by virtue of his purchase under the kabala Exh. .1. From out of this share, however, the lands covered by the hiba‑bil‑ewaz (Exh. A) amounting to 1.32 acres will be excluded. This decree will be with costs on contest against the defendants 2 to 5 and 7 to 9 and ex parte against the rest. The rest of the claims of the plaintiff are dismissed. Since the success in this appeal has been divided, each party will bear its own costs in this appeal. K. B. A. Appeal partly accepted.